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First Amendment
University of North Carolina School of Law
Marshall, William P.

First Amendment
Fall 2011
I.            Introduction
Amendment I (1791):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A.   The Brief History of Free Speech Rights:
1. British Background
a.    Licensing: prior restraint:  IOW, the govt has the right to review and approve
b.    Constructive Treason:  written word could kill
c.    Seditious Libel:  outlawing falsities, slander, etc, especially against govt or its officials.
                                                i.      Eventually, truth became a defense to slander etc, and the jury and not the judge would decide the intent and seditious nature.
2. Colonial Experience:
a.    there is not a lot on record to suggest that the framers intended the 1st A to deal with licensing (dead since 1725).
b.    That said, neither is there much to suggest that they intended anything remotely like what we currently have vis a vis free speech.
c.    The American states continued, for the most part, the British common law system. Any attempt to ascribe more modern notions betray a penchant for retrospective symmetry, giving present convictions a patriotic, if fanciful, lineage.
3. Sedition Act of 1798:  prohibiting false, scandalous, or malicious writing against govt.  Only enforced against supporters of the Republican Party.
a.    Intent an element
b.    Truth a defense, and
c.    Jury determines the law and fact
4. Espionage act of 1917:  the next time SCOTUS directly considered the 1st Amendment.
B.  Philosophical Underpinnings: Theories of the First Amendment
1. The Marketplace of Ideas:  Milton, Mills, etc.
a.    Articulated by Holmes in Abrams v. United States, 250 U.S. 616, 630 (1919)
                                                                                                i.             “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
b.      Core Assumptions:
                                                                                                i.            Free Speech leads to the search for truth
                                                                                              ii.            If an opinion is not fully and fearlessly discussed then it is a dead dogma, not a living truth
                                                                                             iii.            In the long run, true ideas tend to run out false ones
                                                                                            iv.            First Amendment tries to ensure that the marketplace happens
c.       Reasons for  skepticism about the marketplace of ideas approach.
                                                                                                i.            First: experience, not debate, is a better teacher. 
                                                                                              ii.            Second: the presumption of rationality among the conversants → most folks want to hear what supports their prior convictions.
                                                                                             iii.            Third: say something false often and loud enough and it becomes accepted as truth, and fourth it is biased in favor of those who control the conversation or medium of the discussion.
                                                                                            iv.            Fourth: though truth may prevail in the long run, the short run may be very long indeed, and we may all be dead before it prevails. Truth won over Nazi Germany, but not until millions of souls had perished.
                                                                                              v.            Has market failures just like other markets
                                                                                            vi.            How do we solve the problem of regulation?
                                                                                           vii.            The most popular or fastest spreading idea might not be true
                                                                                         viii.            How do we know what is truth when we run into it?
                                                                                            ix.            If we determine the truth, does that mean everyone is silenced?
                                                                                              x.            The dominant media may control entry into the marketplace (costly)
2. Self-governance → Meiklejohn: 1st Amendment is a guarantee for political speech regarding public affairs.
a.    The “vital point, as stated negatively, is that no suggestion of policy shall be denied a hearing because it is on one side of the issue rather than another . . . public issues shall be decided by universal suffrage.”
                                                i.      Meiklejohn , those things that bear on public life, such as education, scientific and philosophical achievements and literature are also among protected classes of speech.
b.    To others, ONLY political speech is protected.  But what is political speech?
                                                i.      Sunstein→ “we should treat all speech as political when it is both intended and received as a contribution to public deliberation about some issue. . . government should be under  a special burden of justification when it seeks to control speech intended and received as a contribution to public deliberation.”
·   Problems with this approach → some speech is louder than the others, access, etc. Say something loud enough, often enough, and folks will begin to believe.
3. Self-fulfillment & Autonomy→ Personhood blather.
a.       People are not to be constrained to communicate or not to communicate, to believe or not to believe, to associate or not to associate.- capacities central to human rationality
b.      Problems:
                                                                                                i.            How do you contain it? self-fulfillment theory might seem to be too lax
                                                                                              ii.            There is some expression out there (pornography and obscenity) that people would think could not possibly be protected
4. More dangerous to restrict some speech than to allow: who would get to decide.
5. Other
a.    Checks and Balances: a means to check the abuse of power by the govt.
b.    Safety Valve for Society: a means of adapting to changes in society through words rather than by blows.
c.    Tolerant society: the costs of intolerance are too high to bear, so speech is protected as a means of: carving out one area of social interaction for extraordinary self-restraint.”
d.    Character building: forces us to confront and cope with persistent and challenging differences of opinion → this is painful, and it makes us stronger.
C.    Organizational Structure for Court Decisions
D. The Subversive Advocacy Cases: Expression that Induces Unlawful Conduct
Development of the Current Understanding
1. Standards: speech can harm and the government can have legitimate interest in restricting speech. But speech has value also, so we have to begin to balance.
a.    When may the government restrict speech in order to protect the govt or a private or social interest?  How serious, likely, imminent must it be? Does the speaker’s intent matter?
2. Bad tendency: speech can be punishable if the bad result is the natural and probable tendency thereof. Even if it is unlikely, or Ø imminent.

rst Amendment? No, “the first amendment cannot have been and obviously was not intended to give immunity for every possible use of language.”  though this speech may be constitutional while in peace, that is not the circumstance that the country now finds itself in.  →  clear & present danger test.
5. Debs v. United States (1919):  Eugene Debs on trial before OW Holmes
a.       Facts: Debs arrested for violating the espionage act of 1917 for statements made at a political rally. He challenged on 1st Amendment grounds and OWH rejected. Though the theme of the speech, socialism, was protected and fine, statements within it about obstructing the recruiting process were violations of the espionage act, and the general theme of the speech was not enough to insulate those comments.
6. Abrahms v. United States (1919):  OW Holmes (dissenting) has a change of heart.
a.       Thoughts & Notes: The Δs, Russian émigrés’ who supported the Bolshevik revolution,  were arrested for distributing a circular advocating a strike. They were convicted of violating the sedition act of 1918. The majority relied on Schenck and Frohwerk.
                                                                                                i.            Holmes adopts the market place of ideas approach. The test for truth is a grand experiment in the marketplace of ideas…. “while that experiment is part of out system I think that we should be eternally vigilant against attempts to check the expressions of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that the . . . “
                                                                                              ii.            Holmes dissent is focused on presence of actual danger, finding none, he would uphold the constitutionality.
7. Rationales for Clear and Present Danger Test (page 35) Wigmore article:
a.    Speech has great import, and govt can prevent only if danger is clear and imminent.
b.    Don’t want to over regulate political agitation
c.    Govt may raise false harms because it may have an interest in regulating speech.
                                                i.      Sometimes folks may tell them to (Islamic Law example)
                                               ii.      To protect of insulate policies that benefit smaller constituencies → protect interest groups
                                              iii.      To maintain control → not always a negative . . . self-preservation is not a poor motive.
                                              iv.      Speech restrictions in war → Aid and comfort to enemies, detrimental to motivation of resources.
d.    There is a tendency of administrations on both sides, to assume that the administration is the country itself, and to perceive an attack on policy as an attack on the country
e.    Won’t punish the speaker, because for the most part the listener has independent volition, and speaker shouldn’t be responsible for the independent decisions of third parties
8. Gitlow v. NY (1925 → Sanford): C&P Danger taking into account the context of the speech is not required if the legislature has already decided what constitutes a danger
a.       Facts & Procedure:  Gitlow a member of the Left Wing section of the Socialist Party. Arranged for the printing and publication of the first issue of a newspaper. Was sentenced for the State statutory crime of criminal anarchy. SCOTUS, under justice Sanford, upheld the conviction.